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Dec 9, 2012
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doma cases are slightly different. i think the doma challenge is much narrower challenge and i expect it to be much more optimistic about a kind of flat-out ruling that this is unconstitutional by the supreme court. the reason i think that, melissa, doma doesn't require any state to change its marriage laws. all it says is the federal government is going to return to what the federal government was always doing before. we were talking about federalism issues earlier in the show. in the history of marriage, the federal government has always deferred to state definitions of marriage. let me give you an example. some states allow first cousins to marry, others don't because of prohibitions, incest concerns and things like that. whatever the state definitions are, the federal government has always followed the state definition. if a state says they're married, the federal government says for the purposes of benefits they're married. in 1996, the defense of marriage act departed from that practice and said the federal gover
doma cases are slightly different. i think the doma challenge is much narrower challenge and i expect it to be much more optimistic about a kind of flat-out ruling that this is unconstitutional by the supreme court. the reason i think that, melissa, doma doesn't require any state to change its marriage laws. all it says is the federal government is going to return to what the federal government was always doing before. we were talking about federalism issues earlier in the show. in the history...
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Dec 7, 2012
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so i think that doma law goes by the wayside. the second question is an equal protection question and goes specifically at the california referendum which -- >> the proposition 8. >> the proposition, proposition 8, which makes it illegal under california law to have gay marriage. they will look at that under the equal protection clause. i think it's a little bit hazardous to anticipate where the court will go on that question, and i would be reluctant to do that, but that's kind of an equal protection question. the request he is will the court be ahead of where the public is or behind the public. this is a question that eventually sooner or later, probably sooner, the public will come around to recognize and already is showing by the polls that marriage equality should be considered a fundamental constitutional right. >> professor peterson, to julian's point, despite its rulings on the president's health care law, on immigration, this court maintains a conservative tilt. is this necessarily good news for supporters of same-sex ma
so i think that doma law goes by the wayside. the second question is an equal protection question and goes specifically at the california referendum which -- >> the proposition 8. >> the proposition, proposition 8, which makes it illegal under california law to have gay marriage. they will look at that under the equal protection clause. i think it's a little bit hazardous to anticipate where the court will go on that question, and i would be reluctant to do that, but that's kind of...
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Dec 10, 2012
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. >> i've heard from the justice department on doma and not with prop 8 and makes it all the more curious. >> the justice department has, again, had a leadership position on overturning the defensive marriage act but if you take the legal position they have advocated in the defensive marriage act cases and you apply it to a situation like proposition 8, all of those anti-gay laws go by the wayside and really a question of them taking the arguments they made in one case and making them again in this other case. >> i want to read from an associated press article on the fear and hope some have regarding gay marriage. gay marriage supporters see 41 reasons to fret over the supreme court's decision to take up the case of california's man on same sex issues and nine states allow partners to marry or will soon. 41 states do not. of those, 30 have written gay marriage bans into their state's constitution. >> i'm not that worried and the reason is because i think that the supreme court would have only taken these cases if they thought that they were ripe for a decision that moves the country forwa
. >> i've heard from the justice department on doma and not with prop 8 and makes it all the more curious. >> the justice department has, again, had a leadership position on overturning the defensive marriage act but if you take the legal position they have advocated in the defensive marriage act cases and you apply it to a situation like proposition 8, all of those anti-gay laws go by the wayside and really a question of them taking the arguments they made in one case and making...
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Dec 9, 2012
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let's start with doma. if that is struck down by the high court, thewill that be thed of conservatives' attempts of outlawing gay marriage? >> it is the mother of all federal laws to try to outlaw. it will be over it it's overturned. if social conservatives try to get smart about this stuff, looking for opportunities to play defense instead of offense, doma, which is a terrible law in my estimation, was an attempt to completely play offense. you can't do this anywhere in any state. we're going to pre-empt you before you try. i think social cons are in a much better position when they say, look, let's make it so the government can't compel us to do things privately we don't want to do. i think you'll see much more emphasis placed on that. the question will be more than what will the supreme court try to do because they don't want to be out in front of public opinion too much. it's going to be fascinating. >> and they've rarely been accused of doing that either. david, let's move on to prop 8 in california. i
let's start with doma. if that is struck down by the high court, thewill that be thed of conservatives' attempts of outlawing gay marriage? >> it is the mother of all federal laws to try to outlaw. it will be over it it's overturned. if social conservatives try to get smart about this stuff, looking for opportunities to play defense instead of offense, doma, which is a terrible law in my estimation, was an attempt to completely play offense. you can't do this anywhere in any state. we're...
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Dec 8, 2012
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so with a doma case, it's like justice kennedy's most favorite things. because justice kennedy loves state power. >> loves state's rights. ? and he loves gay rights because of the 1996 case and the 2003 case, both of which he authored the opinion that upheld the rightings of lgbtv individuals. the doe ma case is like the perfect convergence of those two strands so, that's why i'm so confident about the doma case because it's a state's rights case in the sense that the federal government is meddling with the state definitions of marriage. with respect to the prop 8 case, i think again kennedy, because of these two cases i mentioned, is likely to be sympathetic but may be incremental. he may say something along the lines of one state or eight states have to flip. i don't think he'll flip all 41. >> we always appreciate your valuable insight. we hope you'll stick around for the next few months and continue to provide that as we wade through what is undoubtedly going to be a fairly complex case, as well. good saturday to you, sir. thank you for your time. >>
so with a doma case, it's like justice kennedy's most favorite things. because justice kennedy loves state power. >> loves state's rights. ? and he loves gay rights because of the 1996 case and the 2003 case, both of which he authored the opinion that upheld the rightings of lgbtv individuals. the doe ma case is like the perfect convergence of those two strands so, that's why i'm so confident about the doma case because it's a state's rights case in the sense that the federal government...